were shareholders during the year before the winding up, but who had ceased to be shareholders at the time of the winding up. The Vice Chancellor was of opinion that they were liable to the whole extent of the debts due at the time they respectively ceased to be shareholders, and without making any deductions in respect of the dividends which had been paid in the course of the winding up. We are of opinion that that view is not an accurate view, and that in truth it is directly in contravention of the judgment of the full Court pronounced in Brett's case (1), in which it was held that the right and liability of the ex-shareholders, and the right of the creditor, who was a creditor at the time when the ex-shareholder was a shareholder, were things exclusively between those two classes, the debtors and the creditors, and that there was no right or equity whatever which existed either in the company, the existing shareholders, or the subsequent creditors to interfere in any arrangement they might make between themselves for the satisfaction and release of that claim. That being so, it appears to us utterly inconsistent to hold that there is to be a marshalling of the assets for the purpose of getting some more funds into the coffers of the liquidator, for the purpose of paying a larger dividend to those creditors who had already received certain dividends in this case. The question was very fully considered in Brett's case (1), and it appears to me that the decision there was clearly in accordance with the Act of Parliament, that is, that the company's assets are to go in the first place in payment of their debts. The company's assets include, of course, all the unpaid capital that is recoverable from the existing shareholders, and according to the 133rd section, which is a direction given in cases of voluntary winding up, the whole assets of the company, which of course include the unpaid capital, are to be applied pari passu in payment of all the creditors. That section evidently shews that the liquidator is not to pay some of the creditors for the purpose of leaving a larger amount to fall upon particular shareholders, upon those with regard to whom there are particular (1) 40 Law J. Rep. (N.S.) Chanc. 497. claims. It appears to me that the direction of the Vice Chancellor that the liquidator is not to take into consideration the dividend received in the course of the winding up is erroneous, and ought to be altered, and that the words ought to be struck out of the order. No Then it was contended on the part of the appellant that we were to apply the principle further, that is, that we are to say that each class of ex-shareholders is to be exhausted before you go back to an earlier class of ex-shareholders. That appears to me, not to construe any words in an Act of Parliament, but to make an Act of Parliament. The liability of the ex-shareholders is in this respect a liability entirely created by statute, and there is nothing in the Act of Parliament which gives any new right or equity as between different classes of shareholders. doubt every transferor of a share has a right to an indemnity from his transferee if he can get it, but no transferor has any right or equity in respect of the transferors of other shares. The result is that each ex-shareholder is liable, and all the shareholders are liable to contribute in respect of those debts which were debts at the time when he or they ceased to be shareholders. The Lord Chancellor, in giving his judgment in Brett's case (1), said that it appeared to him that there really would be no difficulty in ascertaining how these funds were to be applied and distributed. There may be a great number of sums in arithmetic to be calculated for the purpose of ascertaining the exact amount of debts which each person was liable to pay; but after all, the difficulty would only arise from the number of sums of common arithmetic which would have to be calculated, and if there is one thing which it appears to me an official liquidator should be skilful in, he should be a skilful ready reckoner, for the purpose of making any number of calculations that may be required. The mode in which it would be applied seems to me to be simply this: If we take the simplest possible case-take the case of A, B, and C, three ex-shareholders, A liable only to the extent of 100l., B liable for that 1007. and another 1007. which had accrued at the time he had ceased to be a shareholder, C liable for the aforesaid 2007. and for another 1007. -in the whole, 300l.; C would have to pay the whole of the last 1007.; he would also be liable to contribute with B to the payment of the second 1007., and he would be liable to contribute with A and B to the payment of the first 1007.; B in like manner would have to pay with A for the first 1007., and would be liable to his contribution in respect of the second. Now, assuming that C, being called upon to pay, is unable to pay the whole amount that is due from him, then of course B must be called upon to the extent of his liability to make that good, and A must do it in the same way; that is to say, the whole that C contributes would have to be apportioned, pro rata, between the whole 3007.; and the whole that B contributes in the same manner would have to be apportioned between the whole 2001. The result would be that A would have to pay, to the extent of his ability and liability, the whole that would then remain of the first 1007. In that way there would be a certain degree of marshalling, that is to say, it is the duty of all parties jointly liable to the same debt to contribute to that debt. The liability of C is to the whole of the 3007.; the liability of B is to the 2001., and of A only to the 1001. They must all contribute rateably to the sum in respect of which they are respectively liable. There seems to me to be no difficulty in working that out, except the difficulty of calculating a great number of sums, and ascertaining the exact number of debts and the exact number of contributories liable in respect of each debt. I think the order of the Vice Chancellor should be varied by striking out the words "without any deduction in respect of dividends on debts already paid by the liquidator in respect of such winding up." Of course the costs of all parties must come out of the assets in the winding up. LORD JUSTICE MELLISH.-I am of the same opinion. Solicitors-Messrs. Ashurst, Morris & Co., for appellant; Messrs. Johnson, Upton & Budd, for liquidator; Messrs. Crosley & Burn, for creditors' representative. Vendor and Purchaser-Public House9 Geo. 4. c. 61. ss. 1, 11, 14-License in Name of a Dead Man. G. R., the owner and licensee of an inn, died on the 13th of July, 1870, having devised the inn to the plaintiffs on trust for sale. His license expired on the 10th of October in the same year. On the 26th of August, 1870, at the annual general licensing meeting, the plaintiffs procured a new license in the testator's name. On the 12th of October they contracted to sell the inn to the defendant. On November the 16th the meeting took place to effect the change, bost the defendant then objected that the plaintiffs could not transfer the license to him, and refused to complete :-Held (reversing the decision of the MASTER OF THE ROLLS), that the license taken out in the name of a dead man was invalid, and, therefore, that the plaintiff's being unable on the 16th of November to transfer a valid license under which the business could be lawfully carried on, could not enforce the contract against the purchaser. Day v. Luhke, 37 Law J. Rep. (N.S.) Chanc. 330, approved of. This was an appeal by the defendant from a decision of the Master of the Rolls decreeing specific performance of an agreement to purchase a public-house at Romford, called the "Durham Arms." The case is reported 40 Law J. Rep. (N.s.) Chanc. 492. George Ross, the owner and licensee of the public-house, died on the 13th of July, 1870, having devised the same to the plaintiffs on trust for sale. The license held by George Ross expired in the ordinary course of events on the 10th of October in the same year, and would have to be renewed on the previous 26th of August, the day of the annual general licensing meeting. A son of the testator, who was one of the trustees, shortly before the 26th of August, went to the deputy clerk to the magistrates of the Romford district, and having informed him of the death of the testator, asked him how he should pro ceed. The deputy clerk told him to attend on the 26th of August, and renew the license in his father's name, and stated that the transfer could be made on a subsequent day. This was accordingly done, and the license renewed in the name of George Ross, who was then actually deceased. On the 12th of October, two days after the old license to George Ross had expired, the plaintiffs contracted to sell the public-house to the defendant. On the 19th they delivered their abstract of title, which properly shewed the date of the death of George Ross; and on the 21st the defendant's solicitor sent in the following amongst other requisitions: "In whose names are the licenses now standing?" To this the plaintiffs replied: "In the name of the late George Ross. They will be transferred by the executors in the usual way." No objection was made to this answer, and the 16th of November was fixed as the day of completion, the "change" day. When the meeting, however, took place for the purpose of effecting the transfer, the defendant refused to complete on the ground that the licenses ought to have been in the name of the plaintiffs, and that as they were not, they could not give him a good title to them. This suit was then instituted for specific performance of the agreement, and the Master of the Rolls made a decree in the usual form in the plaintiff's favour. From this decree the defendant appealed. Pending the suit the plaintiffs procured the license to be transferred into, the name of the testator's widow, one of the executors and trustees, who carried on the business in the meantime. Mr. Roxburgh, Mr. Poland (of the Common Law Bar), and Mr. A. G. Marten, for the appellant.-The magistrates had no authority under the first section of 9 Geo. 4. c. 61 (1) to grant a license to a dead man. That license was therefore void. (1) The 9 Geo. 4. c. 61 provides:-Section 1, that there shall be annually holden a special session of the justices of the peace (to be called the General Annual Licensing Meeting) for the purpose of granting licenses to persons keeping or about to keep inns to sell excisable liquors by George Ross's old license expired on the 10th of October; therefore, on the 12th of the same month, the day on which the retail to be drunk on the premises therein specified. Section 11. That every person holding a license under the authority of this Act, or his heirs, executors, administrators, or assigns, being desirous to transfer such license to some other person, and intending to apply at the special session then next ensuing for permission to do so, shall, within six days at the least prior to such special session, serve a notice of such intention upon one of the overseers of the poor, and upon one of the constables or other peace-officer of the parish or place in which the house kept by the person so holding such license is situate, and every such notice shall be written in a fair and legible hand, or printed, and shall be according to the form in the schedule hereunto annexed marked B, and shall be signed by the party intending to make such application, or by his agent thereunto authorised, and shall set forth the Christian and surname of the person to whom it is intended that such license shall be transferred, together with the place of his residence, and his trade or calling during six months previous to the time of his serving such notice. Section 14. That if any person duly licensed under this Act shall (before the expiration of such license) die, or shall be by sickness or other in. firmity rendered incapable of keeping an inn, or shall become bankrupt or shall take the benefit of any Act for the relief of insolvent debtors, or if any person so licensed or the heirs, executors, administrators, or assigns of any person so licensed shall remove from or yield up the possession of the house specified in such license, or if the occupier of any such house, being about to quit the same, shall have wilfully omitted or shall have neglected to apply at the general annual licensing meeting or at any adjournment thereof for a license to continue to sell exciseable liquors by retail to be drunk or consumed in such house, or if any house being kept as an inn by any person duly licensed as aforesaid shall be or about to be pulled down or occupied under the provisions of any Act for the improvement of the highways or for any other public purpose, or shall be from fire, tempest, or other unforeseen or unavoidable calamity rendered unfit for the reception of travellers and for the other legal purposes of an inn, it shall be lawful for the justices assembled as aforesaid at a special session holden under the authority of this Act for the division or place in which the house so kept or having been kept shall be situate in any one of the above-mentioned cases and in such cases only to grant to the heirs, executors, or administrators of the person so dying, or to the assigns of such person so dying, or to the assigns of the person becoming incapable of keeping an inn, or to the assignee or assignees of such bankrupt or insolvent, or to any new tenant or occupier of the house becoming so unoccupied, or to any person to whom such heirs, executors, administrators, or assigns, shall by sale contract was made, there was no license in existence under which the business could be carried on, and none which the vendors could transfer to the purchaser under the 11th section of the Act. That being so, this comes to be the same case as that of Day v. Lukke, 37 Law J. Rep. (N.S.) Chanc. 330; s. c. Law Rep. 5 Eq. 336 before the Master of the Rolls, which case was followed by the Court of Common Pleas in Claydon v. Green, 37 Law J. Rep. (N.S.) C.P. 226; s. c. Law Rep. 3 C.P. 511; where his Lordship held that in contracts of this description time was of the essence, and that in the absence of a condition to the contrary it is to be assumed that the transfer of the license will be made under the 11th section. The vendors here were not in a position to make such a transfer. Next, we have not waived our right to take this objection, for the plaintiffs in answer to our requisition said that they would transfer us the license in the usual way, which, according to Day v. Luhke (ubi supra), means under section 11; and it was not until the parties met to complete the transfer, that the defendants discovered that no transfer could be made to them under that section. Mr. Southgate and Mr. Horton Smith, for the respondents.-Even granting that the license in the name of the dead man is void, the abstract which was furnished to the defendants disclosed that George Ross died on the 13th of July. The defendants therefore had the means of knowing, and must be taken to have known that his license expired on the 10th of October, and therefore that the vendors could have no license taken out by him in his lifetime which they could transfer. It follows, therefore, that they must be taken to have waived their right to a transfer under section 11. or otherwise have bona fide conveyed or otherwise made over their or his interest in the occupation or keeping of such house, a license to sell excisable liquors by retail to be drunk or consumed in such house or the premises thereunto belonging. The substance of our case is that really the defendants could get all that was necessary for them safely to carry on the business. If we could not transfer the license we held in George Ross's nameand we contend that the magistrates would have had no difficulty in doing that-still we were always prepared to take out a provisional license under the 14th section, and then transfer under the 11th. That would have done just as well, Indeed the widow has now taken out a valid license, and is ready to transfer it to the defendants. Mr. Daniel Jones, for the widow of George Ross. LORD JUSTICE JAMES was of opinion that the decision of the Master of the Rolls in this case could not be reconciled with his Lordship's previous decision in the case of Day v. Luhke. In a contract of this description it was obvious that it was of the essence that the license should be capable of assignment. In this case the vendors were bound to shew that on the 16th of November they could make a title to and hand over a valid license, under which the business could be lawfully carried on. But the vendors had on that day no such license. They had nothing but a license in the name of a dead man, a license which had been taken out in George Ross's name after his death. Such a license must be void, a mere nullity. That being so, all the vendors could have done to get over the difficulty in which they were placed, was to put themselves right by obtaining a license to themselves under the 14th section of the Act of Geo. 4 (and this no doubt would have been given on the ground of the mistake that had been made by a license having been granted to a dead man), and then put the purchaser in possession under the 11th section. But the purchaser was not bound to wait till all this was done. He must be at liberty at once to repudiate the contract, as soon as he found on the 16th of November that the vendors had then no license which they could at once transfer to him. His Lordship had at first been disposed to think that this case was distin guished from Day v. Luhke by the fact that the date of the death of George Ross appeared on the abstract, and therefore the purchaser must have known that the license which George Ross held must have expired at the date of the contract, and consequently that the license in the name of George Ross, which was what the plaintiffs in their answer to his requisition promised to transfer to him, must have been invalid. But his Lordship was, on consideration, of opinion that it was almost impossible to fix the purchaser with knowledge of the effect on the license of the death on a particular day of George Ross. As a matter of fact, it was not probable that either he or his solicitor did see what the effect was, nor was it so plain that the Court would consider him bound by it. On the whole, his Lordship thought that the purchaser had not waived his right to have a good title to the license, that he had not been offered a good title, and therefore this bill must be dismissed with costs. LORD JUSTICE MELLISH concurred. pose, for the use of and to the reasonable satisfaction of the plaintiff. Subsequently the powers of the West Cheshire Railway Company were vested by Act of Parliament in a corporation called "The Cheshire Lines Committee." The siding was not made contemporaneously with the construction of the railway, and the plaintiff filed this bill for specific performance against the two corporations, and prayed for damages in addition. Mr. Amphlett and Mr. Townsend, for the plaintiff, cited Storer v. The Great Western Railway Mr. Kay and Mr. Speed, for the defendants, contended that the plaintiff had power to construct the siding, which was to be made on his own land, and under the Railway Clauses Acts to connect the siding with the railway; his remedy, therefore, was to do so, and bring an action for damages South Wales Railway Company v. The cases cited by the other side were distinguishable, as there the railway was to construct works on their own land. If specific performance was not to be decreed the Court would not give damages under Lord Cairns' Act or under Rolt's Act Durell v. Pritchard, 34 Law J: Rep. (N.S.) Chanc. 598. BACON, V.C. (on Nov. 7) said :-I will not trouble you to reply, Mr. Amphlett. Since the case was argued on Saturday I have had an opportunity of looking at the pleadings and the authorities which were referred to, and I may as well dispose of the case at once. There is no doubt in my mind about the jurisdiction of the Court. No doubt there are many cases in which the Court cannot, and only for that reason will not, decree specific performance of an agree ment. Not only Storer v. The Great D |